WSIB Legislation

Can I Sue For Damages When Hurt On The Job?: The Implications of WSIB Legislation

Nothing seems more confusing to the public – and even lawyers who practice in areas outside of personal injury law – than the implications of WSIB on the right to sue for damages when an injury has arisen in the course of employment.  This brief blog provides a very brief answer to this question and should allow you to pose informed questions when you call a Lerners’ injury lawyer to discuss whether you have a valid claim.  I write this blog as a lawyer who does not practice in the area of worker’s compensation, but who nonetheless must frequently navigate the implications of WSIB legislation when advising my clients.

The Historical Background

Before worker’s compensation legislation was enacted, there was no automatic right to compensation when injured at work.  There is an old body of law dealing with the relationship between “master” and “servant”, that was not a very satisfactory means of compensating a worker who became injured or disabled on the job.  It involved suing the employer for its negligence or the negligence of a fellow worker.  It certainly did not offer quick access to compensation.  It was also unavailable when the worker was the author of his or her own misfortune.  Many injured workers simply did not receive compensation and there were very unequal power dynamics between a larger employer and an individual worker.

Owing to dissatisfaction with the ability for workers to receive compensation, an entirely new, legislated process was created – worker’s compensation.  With this system, all employers were required to pay into a fund that was made available to compensate workers.  It would no longer be necessary for the “servant” to sue the “master”.  Instead, an adjudicative system was created to help pay for medical treatment, rehabilitation, and income continuation.  Given the number of workers injured through their own fault, rather than through the fault of the employer or a co-worker, this new legislated system was designed as a “no fault” compensation system – an injured worker would still receive compensation, even if the worker was personally to blame for the injury or disability.

In exchange for a no fault system, a significant protection was offered to employers;  they could no longer be sued in court for monetary compensation, even when the employer was clearly negligent.  Injured workers could access worker’s compensation benefits, but, they no longer could sue for damages, even if those damages would be much larger.

Thus began a system which has evolved into our present day system for compensating workers.

Implications of WSIB on Lawsuits

Today, regulations have been created which provide very long lists of occupations of workers considered to be “Schedule 1” employees of “Schedule 1” employers.  There is a second list of “Schedule 2” occupations, but I won’t discuss that any further in this blog.

The basic rule is that a Schedule 1 employee – someone whose job is amongst the long list of occupations intended to be caught by WSIB – cannot sue a Schedule 1 employer, nor a Schedule 1 employee.  This bar on the right to sue extends not only to the worker’s own employer, but to any other Schedule 1 employer.  If a work site involved ten different Schedule 1 employers, all of whom shared some blame for an injury, none of those employers could be sued.  Similarly, all schedule 1 employees, not just the co-workers of the injured worker who are employed by the same employer, are protected from being sued.

Devil in the Details

In theory, it should be easy to apply these rules to determine whether there is a right to sue, but in practice, as I’ve learned over my 25 years grappling with this issue, there are many subtleties making the answer much harder to determine.

Let me provide just a few examples to illustrate the challenges:

EXAMPLE ONE

Two transport trucks are driving down the 401 and come into a collision.  Can the injured truck driver sue the at-fault driver who struck him?

I had this exact case.  I thought it should be a standard motor vehicle lawsuit.  My client was an independent owner-operator of his own rig.  He had previously obtained a pre-ruling from WSIB which confirmed that he was not covered by worker’s compensation legislation and for that reason, he had purchased his own private LTD package.  It was much the same situation for the other truck driver, who was also an independent owner-operator.  I started the usual lawsuit.  The defence lawyer, as he was entitled to do, brought an application before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT).  The ultimate decision from the WSIAT adjudicator, following a day long hearing, was that even though my client in every way appeared to be an independent operator, in the eyes of WSIB, he was still a worker.  It was the same finding for the at-fault driver.  As a result, the right to sue was taken away.  There could be no lawsuit!

EXAMPLE TWO

Let’s take the same example but change the facts.

A professional truck driver, salaried, and clearly a worker, is on the 401 and is forced off the road and into a ditch, flipping over her rig, because a private passenger vehicle cut her off.  With this example, the truck driver is clearly protected by WSIB, but retains the right to forego WSIB and instead elect to pursue a lawsuit against the at-fault driver (a non-worker for WSIB purposes).   In this circumstance, the injured worker would access statutory accident benefits under an automobile policy of insurance, instead of the WSIB benefits that would be available.

Whether this is a good tactical approach will hinge on the assessment, which ought to be made by a lawyer, as to which system, at the end of the day, is likely to offer better compensation.   There are a number of hurdles, which would deserve their own blog, that also limit the ability to successfully advance a lawsuit in a motor vehicle case…..just because you might have the right to sue, doesn’t necessarily mean it would be a wise tactical decision to do so.

EXAMPLE THREE

A worker is injured on the job when a large electrical motor catches fire.   This worker is employed in a Schedule 1 occupation.  At the time that the motor catches fire, a co-worker was performing maintenance.  Investigations reveal however that the motor had a manufacturing defect.  It was negligently designed and manufactured.  In this example, the Schedule 1 injured worker is barred from suing his Schedule 1 employer and is barred from suing his Schedule 1 co-worker.  He is however free to pursue a claim against the manufacturer, which is not a Schedule 1 employer.  There may well be a very valid claim that could be advanced.  Again, this type of determination should be made by an experienced lawyer.

This blog only scratches the surface.  There are many other wrinkles that could apply, including a line of cases dealing with an employee who is on her way to work, or on her way home from work, and the resulting analysis as to whether, at the time of an accident the injured person was “in the course of employment”.   Even on what appears to be “off duty” time, an individual could still be considered to be in the course of employment, and as a worker, find out that lawsuit is statute barred.

The lawyers at Lerners will be a very valuable resource for you if you are confronted with any of these situations.  We are here to help so please contact us for a no-cost consultation.

Andrew Murray

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